Citation Nr: 0631870
Decision Date: 10/13/06 Archive Date: 10/16/06
DOCKET NO. 02-12 924 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to service connection for pityriasis rosea (a
skin condition).
REPRESENTATION
The veteran represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
S. A. Mishalanie, Associate Counsel
INTRODUCTION
The veteran served on active duty in the military from May
to December 1976.
This appeal to the Board of Veterans' Appeals (Board) arose
from a September 2000 decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Columbia, South
Carolina. In October 2003, the Board reopened the veteran's
previously denied claim for service connection for a skin
disorder, and remanded the claim to the RO for additional
development and readjudication. In May 2004, the Appeals
Management Center (AMC), which developed the claim in lieu
of the RO, issued a supplemental statement of the case
(SSOC) continuing the denial of the claim. The claim was
then returned to the Board for further appellate review.
In September 2004, the Board issued a decision continuing
the denial of the veteran's claim, and he appealed to the
Court of Appeals for Veterans Claims (Court). In January
2006, during the pendency of the appeal to the Court, the
veteran's attorney and VA's Office of General Counsel
(representing the Secretary) filed a joint motion requesting
that the Court vacate the Board's decision and remand
the case for further development and readjudication. The
Court granted the joint motion in a January 2006 order and
returned the case to the Board for compliance with the
directives specified. So to comply with the Court's order,
the Board, in turn, is remanding this case to the RO via the
AMC. VA will notify the veteran if further action is
required on his part.
REMAND
The joint motion sets forth two reasons for vacating the
Board's September 2004 decision. First the joint motion
argues the Board's reliance on a March 2004 VA examination
was not in compliance with VA's duty to assist (JM, pg. 4).
See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.156(c)
(2006). The motion argues the March 2004 VA examination was
inadequate because the examiner did not provide a rationale
or explanation as to why he reached his conclusions.
Second, the joint motion argues the Board failed to develop
the veteran's allegations that heat stroke/intolerance
either caused his current skin condition or aggravated a
preexisting condition (JM, pgs. 4-5). See Stegall v. West,
11 Vet. App. 268, 271 (1998) (where the remand orders of the
Board are not complied with, the Board itself errs in
failing to ensure compliance).
Historically, the veteran's service medical records (SMRs)
indicate he was diagnosed with pityriasis rosea prior to his
enlistment in May 1976. Pityriasis rosea is a mild
exanthematous inflammation characterized by the presence of
salmon-colored maculopapular lesions. In July 1976, he was
treated for heat stroke. It was noted at the time he also
had pityriasis rosea and he was treated for this as well.
In September 1976, a skin biopsy confirmed he either had
pityriasis rosea or lichen planus. A Military Medical Board
recommended he be discharged due to heat stroke/intolerance.
He opposed this decision.
After the veteran was discharged from military service in
December 1976, VA treatment records indicate he was treated
in March 1981 for spots on his scalp and generalized dry
skin. In October 1982, Dr. Morgan, a private dermatologist,
treated him for alopecia areata (baldness that occurs in
patches). In March 1983, he was diagnosed with acne
vulgaris. In July 1986, he was diagnosed with
pseudofolliculitis. In May 1995, it was noted that he had
acne keloidosis, a condition which results in keloid
scarring and generally manifests itself as persistent
folliculitis of the back of the neck.
The report of the March 2004 VA examination indicates
diagnoses of acne keloidalis, mild pseudofolliculitis barbae
of the anterior neck, and eczema of the right calf. The
examiner reviewed the veteran's claims file (c-file) and
stated (in response to the Board's remand directives):
1) The nature and extent of the veteran's skin
disability is listed above. 2) It is not at
least as likely as not that any current skin
disorder was present in service. 3) The veteran
did have a skin disorder which existed prior to
his entrance onto active duty, and it is not at
least as likely as not that the skin disorder
increased in severity during the veteran's
military service. 4) The veteran's currently
existing skin disorders which are listed above ,
in my opinion, it is not at least as likely not
[sic] that these skin disorders are etiologically
related to the veteran's military service.
Although the examiner answered the Board's October 2003
remand directives, the joint motion argues that the
examination was inadequate because the rationale and bases
were not explicitly given. So, for example, the examiner
must be asked to explain exactly why he does not believe any
of the veteran's current skin disorders were present in
service. The answer might be as simple as the veteran's
SMRs do not note the presence of any of his current skin
disorders during service. Regardless of how obvious the
explanation might seem, the Court has ordered that an
explicit rationale be given for each of the examiner's
opinions. So a remand is required.
As mentioned, the evidence indicates the veteran had
pityriasis rosea or lichen planus during military service
(confirmed by the September 1976 biopsy). He was diagnosed
with what was believed to be pityriasis rosea prior to
service. The evidence does not indicate he currently has
pityriasis rosea or lichen planus. Although not entirely
clear, it appears the veteran argues, at least in part, that
the heat stroke he had in July 1976 somehow either directly
caused his current skin conditions (acne keloidalis,
pseudofolliculitis barbae, and eczema of his right calf) or
aggravated his prior skin condition (pityriasis rosea or
lichen planus) to such a degree as to cause his current skin
conditions (see Hr'g. Tr., pgs. 4-5). He argues this
despite the fact the evidence indicates his current skin
conditions were not diagnosed until several years after the
heat stroke in July 1976. Acne vulgaris was first diagnosed
in March 1983, pseudofolliculitis was diagnosed in July
1986, and eczema on his right calf was diagnosed in March
2004.
The joint motion argues further development is needed
regarding this argument raised by the veteran. The Board
alluded to this development in the October 2003 remand,
stating that a VA examination and medical opinion was needed
"on whether any incident, including heat stroke/intolerance,
in service caused or aggravated the veteran's skin
disorder..." So a remand is also required so a medical
opinion can be obtained with regard to any relationship
between his current skin disorders and the heat stroke
incurred in July 1976.
In September 2006, the veteran submitted an additional
medical opinion from Dr. Morgan. In a July 2006 letter, Dr.
Morgan stated that he had been treating the veteran for
follicular keloids, which he believed were more likely than
not aggravated by his military service based on the Medical
Board's Report. Generally, the Board cannot consider
additional evidence that has not been initially considered
by the RO unless it obtains a waiver from the veteran to
do so. 38 C.F.R.
§ 20.1304(c); see also, Disabled American Veterans (DAV) v.
Sec'y of Veteran's Affairs, 327 F.3d 1339, 1346 (Fed. Cir.
2003).
In this case, the veteran has not indicated he is waiving
initial consideration of the additional evidence in question
by the RO. So a remand is also required so the RO can
initially consider this additional evidence. In addition,
Dr. Morgan should be asked to provide the rationale or bases
for his opinion. Although he refers to the Medical Board's
Report, the report makes no mention of follicular keloids.
So further clarification is also needed regarding this
medical opinion.
Accordingly, this case is REMANDED for the following
additional development and consideration:
1. Send a letter to Dr. Morgan asking him
to provide the complete rationale and
bases for the medical opinion stated in
his July 2006 letter. Specifically, ask
him why he believes the veteran's
follicular keloids were aggravated by his
military service in light of the fact the
veteran was not diagnosed with
folliculitis keloids until July 1986 -
over six years after being discharged from
military service. Ask Dr. Morgan to
explain exactly which statements in the
Medical Board's Report support his opinion
that the veteran's folliculitis keloids
were incurred or aggravated by his
military service.
2. If possible, have the VA physician who
examined the veteran in March 2004 submit
an addendum to the report of that
evaluation providing the rationale and
bases for each of his opinions.
Specifically, the examiner must explain
why he does not believe any of the
veteran's current skin disorders were
present in service; why he believes the
veteran does not currently have a skin
disorder that existed prior to entrance
onto active duty; why he believes the skin
disorder that he had prior to service did
not increase in severity during his
military service; and why the veteran's
current skin disorders are not
etiologically related to the veteran's
military service.
In addition, the VA examiner is asked to
render an opinion as to whether any of the
veteran's current skin disorders are at
least as likely as not related to the heat
stroke incurred in July 1976. Again, the
VA examiner must provide the complete
rationale and bases underlying all of his
medical opinions.
*If, for whatever reason, it is not
possible to have that same VA examiner
comment further, then obtain a medical
opinion from another doctor equally
qualified to make these important
determinations. (Note: if the latter
situation arises, this may require having
the veteran reexamined.)
3. Review the claims file. If any
development is incomplete, including if
the examination report does not contain
sufficient information to respond to the
questions posed, take corrective action
before readjudication.
38 C.F.R. § 4.2; Stegall v. West,
11 Vet. App. 268 (1998).
4. Then readjudicate this claim in light
of the additional evidence obtained. If
it is not granted to the veteran's
satisfaction, send him and his
representative an SSOC and give them time
to respond before returning the case to
the Board for further appellate
consideration.
No action is required of the veteran or his representative
until further notice is received. By this action, the Board
intimates no opinion, legal or factual, as to the ultimate
disposition warranted in this case.
The veteran has the right to submit additional evidence and
argument concerning the claim the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims remanded by the Board of Veterans'
Appeals or by the United States Court of Appeals for
Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005).
_________________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United
States Court of Appeals for Veterans Claims. This remand is
in the nature of a preliminary order and does not constitute
a decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).